The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Friday, November 01, 2013

Independent judges beware

It's incredible to me that more lawyers aren't upset about the attack on the independence of the judiciary.

First up is the Second Circuit deciding on its own to remove a judge (without any request from the parties) because she said that she wasn't afraid to rule against the government. From Jeff Toobin's piece:

The United States Court of Appeals for the Second Circuit just chastised Shira Scheindlin,
the trial judge in the case challenging the constitutionality of the
N.Y.P.D.’s stop-and-frisk policy, for speaking out about the issue while
the trial was going on. In a ruling today, the appeals court said
Scheindlin’s statements suggested that her “impartiality might
reasonably be questioned.” As a result, all further proceedings in the
case, in which Scheindlin found that that city residents’ rights had
been violated, will be transferred to another trial judge. The appeals
court, in a footnote, in particular cited Scheindlin’s statements to me in a piece for The New Yorker, as well as to the AP and the New York Law Journal. (I have some familiarity with this sort of thing. )
This is preposterous. The Second Circuit took
this action on its own, without even a request from the city (the
defendant in the case). Apparently, it took the view that there had been
such an egregious violation of the rules of judicial conduct that the
court had to act on its own—sua sponte, as the lawyers say. It also stayed Scheindlin’s rulings aimed at reforming stop-and-frisk.
Scheindlin did nothing wrong. She talked about her judicial career
and her history on the bench in a way that illuminated the work that all
judges do. In my experience, it’s a common complaint from judges that
the public doesn’t understand their work, and doesn’t care about what
they do. Scheindlin’s conduct in this case exemplified the independent
tradition of the judiciary. She should be honored for it, not scolded.

Next Republicans, who have accused the president of trying to tip the
court’s ideological balance in Democrats’ favor, quickly dispensed with
the nomination of Patricia Ann Millett to the United States Court of
Appeals for the District of Columbia Circuit. A former government lawyer
whose husband serves in the military, she has worked in both Republican
and Democratic administrations. The White House chose her as a test of
how far Republicans would go to derail a qualified nominee.

***

Republican objections to Ms. Millet had nothing to do with her judicial
temperament or political leanings. Instead, Republicans said they wanted
to refuse Mr. Obama any more appointments to the appeals court, which
is widely recognized as second only to the Supreme Court in importance
and often rules on politically significant matters like presidential
authority and campaign finance.

“Our Democratic colleagues and the administration’s supporters have been
actually pretty candid,” said Senator Mitch McConnell of Kentucky, the
Republican leader, who pressed his members hard to vote no. “They’ve
admitted they want to control the court so it will advance the
president’s agenda.”

Another confrontation — on these nominations or others — seems
inevitable. Even as Republicans pledged to stop Ms. Millett, two more
nominees to the appeals court were working their way through the Senate
confirmation pipeline. Robert L. Wilkins, a Federal District Court
judge, cleared the Senate Judiciary Committee on Thursday by a 10-8
party-line vote. Cornelia T. L. Pillard, a Georgetown law professor, was
already approved by the committee and is awaiting a vote on the Senate
floor.

The court is split evenly with four Republican and four Democratic
appointees among the judges who regularly hear cases. Among the judges
who are semiretired, five are seen as conservative, one as liberal.

There are still three vacancies that Mr. Obama is trying to fill.
Republicans are pushing a bill that would eliminate those seats
permanently because they argue the court has a light caseload.

That has prompted Democrats to accuse Republicans of trying to change
the rules simply because they do not like the president who is picking
judges.

“The judiciary is too important to play partisan games with,” said
Senator Dianne Feinstein, Democrat of California. “And that’s exactly
what’s going on here.”

6 comments:

Sorry, but the Judge was way out of line. She engineered a case she suggested be brought so that it would go before her, then she publically discussed it while it was pending. Without absolute neutrality any judicial system is a farce. The Second Circuit is correct; even the appearance of impropriety must be eliminated.Tony AccettaFormer AUSA

Sorry, I may have confused the Tony Accetta in the comment above with Anthony Accetta. There is a Tony Accetta out of Colorado who was a former AUSA out of Denver. That said, I disagree with Mr. Accetta (from Colorado).

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.